The courts and language, and Harry Potter

The Trademark and Copyright Law Blog has – or had a few weeks ago – a post on all the court cases relating to Harry Potter – Harry Potter Lawsuits and Where to Find Them, for example:

Smith v. Rowling. In 2010, Elijah Smith brought a pro se claim against Rowling in the Eastern District of California. The allegation was simple: “I’m the author who write Harry Potter. . .” As to the relief sought, Mr. Smith stated:

Mrs. J.K. Rowling will make a great teacher . . . I’ll be gladly to help Mrs. J.K. Rowling after she pay me $18 billion.

Mr. Smith’s complaint was dismissed shortly after it was brought, and his request to proceed in forma pauperis was denied. Mr. Smith, who at the time the complaint was filed resided in a California state prison, has brought similar claims against Michael Jackson, Lil Wayne, Snoop Dog and Sam Cooke.

(via Law and Magic Blog)

And Mark Liberman at Language Log links to an article on a court being invited to consider corpus linguistics in deciding the meaning of a term (to discharge a weapon), although perhaps the right judge did not win the argument: “Linguists have a name for this kind of analysis” . The linked article is by Gordon Smith in the Conglomerate: Corpus Linguistics in the Courts (Again).

UOGB v. TUKUO

What is this?

The mere sight alone promises curiosity: six men, seated, two women, instruments on their laps which look like newly-hatched baby guitars. Ukulele orchestra is the name of this bizarre appearance and wherever it plays it elicits frenetic applause from the audience everywhere.

It could almost be the Ukulele Orchestra of Great Britain.

British ukulele players indeed.

But what is that tell-tale touch of Denglish doing there?

Don’t miss it !!! , judged the SWR television. The Stuttgarter Zeitung titled ” The Ukulele rocks”, the Mannheimer Morgen spoke of a “brilliant performance of musical cabaret”, the Frankfurter Allgemeine Zeitung thought it was a “magic moment of musical comedy” and for the “Heilbronner Stimme” the whole show was “just great fun”. The musicians from London, Edinburgh, Nottingham and Glasgow just know how to capture the audience wherever they go.

But it doesn’t really matter, it is not going to be much different from the real thing.

You’d think they could have found a German or two, though.

The Intellectual Property Enterprise Court, part of the Chancery Division of the High Court, had to decide whether the United Kingdom Ukulele Orchestra, a German set-up with British players, had infringed the Ukulele Orchestra of Great Britain’s community trade mark and committed passing off and infringement of copyright.

Judgment

The trade mark was not held to be distinctive, so the claim failed, except with regard to passing off.

UKUO was set up by Mr Clausen, his business partner Mr Tings and Mr Moss in 2009. The three of them agreed upon the name. Mr Clausen admitted that at that early stage he knew about UOGB and informed himself about them by looking at their website. He must have known of their style of dress and the nature of their performances and that by 2009 they had enjoyed a good deal of success, particularly in the UK and Germany. Mr Clausen must have known that the concert services to be provided by UKUO were similar to those of UOGB. He must also have known that as a matter of language ‘The United Kingdom Ukulele Orchestra’ would to most people mean very much the same thing as ‘The Ukulele Orchestra of Great Britain’, not least in Germany where UKUO was to be based.

In my view, in those circumstances Mr Clausen and his colleagues either knew or ought reasonably to have known that from a commercial standpoint they risked objection from UOGB. In pressing ahead without seeking the sanction of UOGB or any kind of accommodation with UOGB, they acted outside honest practices within the meaning of art.12(b).

There is an account of the case at The IPKat, which concludes:

Ultimately only the claim under passing off succeeded, and UOGB’s mark was deemed invalid. This Kat is by no means an aficionado of small instruments, and believes the fight was a surprising one, seeing as the market for ukulele performances cannot be that big (readers more inclined in this area of music can correct me here, of course). In the end, the case seems shut, and the two orchestras just might have to get along for the foreseeable future.

I must admit that my attempts to learn the ukulele were fun, particularly in the classes of the redoubtable Pete of the Duke of Uke, but the idea of a large number of ukuleles strumming away in unison seems a bit of a dead end.

IMG_1569

Exclamation mark in Supreme Court judgment

Thank goodness the Supreme Court has ruled that Prince Charles’s ‘black spider memo’ letters to parliament can be disclosed:
full judgment and press summary as PDFs on the Supreme Court site.

Judgment read out on youtube:
R (on the application of Evans) and another v Attorney General

This relates to letters predating the coalition legislation under which the royal family are exempt from freedom of information law: see 37 here (PDF).

But attention quickly concentrated on the use of an exclamation mark in the judgment (fortunately in a dissenting opinion):

LORD WILSON: (dissenting)
168. I would have allowed the appeal. How tempting it must have been for the Court of Appeal (indeed how tempting it has proved even for the majority in this court) to seek to maintain the supremacy of the astonishingly detailed, and inevitably unappealed, decision of the Upper Tribunal in favour of disclosure of the Prince’s correspondence!

Jack of Kent on Twitter:

Jack of Kent @JackofKent

So Lord Wilson has brought a long distinguished judicial career to an end by using an exclamation mark in a judgment pic.twitter.com/s8KF8QgMEJ

The German media on the US legal system

Andrew Hammel has a suspicion that the German media are keen to find fault with what they believe to be the US justice system, while overlooking comparable shortcomings of the German justice system. Goodness gracious – is he allowed to publish that kind of thing?

Bleg: German News Coverage of Failures of German Justice

Andrew is looking for evidence in the German-language press:

So what I am looking for is articles in the German-language press by Germans which deal with potential justice problems in courts in German-speaking countries including:

(1) wrongful convictions;

(2) racial, ethnic, or religious disparities in conviction rates or sentencing;

(3) allegations of racial or ethnic or religious bias among German prosecutors and professional or lay judges;

(4) interviews with prisoners currently serving prison sentences in Germany who claim that they are completely innocent of the crimes of which they were convicted; and/or

(5) detailed examinations of systemic problems in German criminal justice or prisons, things such as underfunding, outdated regulations, disproportionate penalties, or the use of unreliable evidence.

And why behold you the speck that is in your brother’s eye, but consider not the beam that is in your own eye?

Interpreting Dagenham

In interpreting teenage slang for the jury, what could Mark Paltenghi do? Your honour, this is bare hard to understand: Laughter in court as barrister has to translate defendants’ teenage slang into plain English

A barrister had to translate text messages sent between teenagers into plain English in court after they included slang like ‘bare’ – meaning really- and ‘bait’ – meaning blatant – for the judge.

During the shooting spree in Dagenham, the group are said to have sent text messages to each other, which were read out by the prosecution along with the ‘translations’.

In one message, sent by the youngest defendant who is 16, to a contact called ‘female boss’, he wrote: ‘Hurry up I’ve got bare haters around me now.’

Prosecutor Mark Paltenghi – in his fifties – informed the jury: ‘Next to it in italics you have it re-written.

‘It means: ‘Hurry up, I’ve got a lot of people who don’t particularly like me here.’

Another text read: ‘Hurry up I’ve got a strap on me, this is bare bait’.
Mr Paltenghi told the jury: ‘We believe this means: ‘Hurry up, I’ve got a gun on me, and this is really risky’.’

Defendants Scott Stokes, 20, his brother Jason, 18, Anne-Marie Madden, 25, and 16-year-old who cannot be named for legal reasons, burst into laughter.

Jurors also giggled when Judge Patricia Lees asked the defence barristers: ‘Do you agree with these translations?’

(First seen in Metro headed I’m a barrister, innit)

LATER NOTE: Just in, the report of a witness speaking Sierra Leone creole (Krio) for an hour before anyone in court realized it was not an acoustics problem.

Witness gave evidence for an hour before anyone in court realised she wasn’t speaking proper English

Forensic linguistics in court

At Language Log, Mark Liberman has a post dated 28.11 and headed Plebgate judgment, in which he reports on his experience as an expert witness, with Peter French appearing for the other side (Mitchell’s).

As is widely known, Andrew Mitchell, the government chief whip, was stopped by police from cycling through a pedestrian entrance in Downing Street and is said to have told the policeman ‘Best you learn your fucking place – you don’t run this fucking government – you’re fucking plebs.’

The language aspect was that there were arguments that the police officer in questio, Toby Rowland, was thought unlikely to invent such an expression, and Mitchell was thought likely to use it.

Mark Liberman had to report on whether the time of the exchange recorded by CCTV cameras was long enough for the words to have been spoken. Both he and Peter French came to the conclusion that the time was long enough. Liberman quotes Archie Bland in The Guardian:

You couldn’t help but be lost in admiration for [Mitting’s] forensic command of the detail: you’d need a memory palace to keep it all straight. And yet it almost all seemed irrelevant. A judgment that took over an hour to read boiled down to the fact that two phonetic experts judged that Mitchell would have had time to say the “toxic phrases”, and that he had told his deputy that he didn’t know what he had said very soon after.

More from the case – full report here – in the Language Log post. Also the commenters get very involved in forms of address in court, starting with whether it was right for Mark to address an English judge as ‘My Lord’.

Loveparade Duisburg: criminal investigation falls into the hands of translators

There’s an article in the Westdeutsche Allgemeine Zeitung (WAZ) on the holdups to the Loveparade case resulting from delayed or erroneous translations by two agencies: Das Loveparade-Verfahren überfordert Englisch-Übersetzer.

21 people died from asphyxiation and 541 were injured at the Loveparade 2010 in Duisburg. It seems that the ground was suitable for 250,000 people and didn’t even reach capacity before there was a crush at the entrance between those coming in and those trying to leave. (Wikipedia German, Wikipedia English).

Apparently it is still not clear exactly how the accident occurred. The court commissioned a report from Professor G. Keith Still, Professor of Crowd Science at Manchester Metropolitan University, presumably to throw light on the sequence of events. This choice of expert witness was criticized as all the documents had to be translated into English for Professor Still and his report had to be translated back into German.

Criticism was directed at the delays in translation by the first agency, and also errors in the translation by the second agency. The second agency was commissioned in June 2012. On Friday November 14, Joachim Schwartz, the presiding judge of the 5th Duisburg Strafkammer, sent out three pages of criticism of errors.

What happened in detail in the translations?

1. We don’t know when the first agency was commissioned, just that June 2012 was regarded as too late. The events took place in June 2010, and after that the documents had to be translated and sent to Professor Still and he had to write his report before any translation could be commissioned.

The article states that the public prosecutors were sometimes unsatisfied with the time they had to wait for translations, and that deadlines were repeatedly breached. This suggests that the first agency was responsible for more than one translation – perhaps the DE>EN ones as well as the EN>DE one.

The report is available online as a PDF (21 pages, contains illustrations and photos). However, there was a later extended report, dated March 2013. This second report can be downloaded from the WAZ site here in four parts.

2. On November 14 the court, as stated above, criticized the second agency’s translation. The public prosecutor’s office is waiting to give the agency a chance to respond.

One part criticized is this (from the second report):

When did the loudspeaker system cease to be effective?

Original, referring to loudspeakers: “Their deployment and use is to inform the crowds but once the entry system failed and the crowds flowed in behind the police lines the situation was already beyond the point of no return.”

Translation: “Deren Verwendung und Einsatz dient der Information der Menschenmenge, aber sobald das Eingangssystem versagte, und die Menschenmenge bis zu den Polizeikordonen geströmt war, hatte die Situation einen Punkt überschritten, wo keine Rückkehr mehr möglich war.”

The translation treats “behind the police lines” as “up to the police lines”. I presume this is important because of the allocation of responsibility.

The court also criticized that the translation was in parts dubious, in parts changed the meaning, and in one place had omitted a complete sentence.

There isn’t enough evidence here to demonstrate a really bad translation. On top of that, the report itself is controversial and much criticized by the defence.

There’s a useful German blog on Loveparade 2010:
Dokumentation der Ereignisse der Loveparade 2010 in Duisburg

Court sketch artists

In England and Wales, court sketches can’t be done in court but are done by an artist from memory afterwards (see earlier post). Rolf Harris may not have known this.

Isobel Williams shows pictures she did in the Supreme court in her blog Drawing from an uncomfortable position (Supreme Court art: exam nerves and Supreme Court art: piano piano):

‘Am I very politely being told to sit down?’ enquires counsel. ‘I can’t resist the temptation to take you to the Slovenian nationalisation.’
‘Do try,’ murmurs the bench.
But we’re off to Ljubljana.

Meanwhile a sketch done in the Lee Rigby Murder Trial has acquired a new life recently under the heading Court sketch artist sacked after releasing first picture from Rolf Harris trial. I had forgotten Rolf Harris’s catchphrase ‘Can you see what it is yet?’, but others have not.

Partly via UK Supreme Court Blog.

Cat ownership cases

Wikipedia refers to splitting the baby as a legal term:

The expressions “splitting the baby” or “cutting the baby in half” are sometimes used in the legal profession for a form of simple compromise: solutions which “split the difference” in terms of damage awards or other remedies (e.g. a judge dividing fault between the two parties in a comparative negligence case).

But I suppose the judgment of Solomon would not work with cats.

A German judge, in Central Franconia of course, perhaps not a cat owner, tried two techniques to discover who owned a cat. First she took all the parties onto a car park roof and had the cat released to see who it would run to. The cat ran under a car, where it remained for a while. Secondly, she had both parties hold the cat to see who the cat preferred. The cat liked them both.

Auf Anordnung des Amtsgerichts musste die Frau die Katze nun zur Verhandlung mitbringen. Auf dem Parkdeck des Gerichts sollte sie das Tier dann frei laufen lassen. Die Richterin wollte damit feststellen, ob sich das Tier bei einem der Beteiligten zutraulich zeigt. Das ging jedoch schief, denn die Katze flüchtete sofort unter ein Auto und blieb dort auch erstmal. Erst nach längerer Zeit konnte sie hervorgelockt werden.

Eventually the original owner was able to prove ownership of Lumpele (‘Little Rascal’) with photos.

George Osborne, the Chancellor of the Exchequer, had his phone number put on Freya’s collar. See
I rescued George Osborne’s cat and put homelessness on the map. Freya was microchipped anyway, but this didn’t prevent her being looked after as a stray for three years some time earlier.

They gave up hope long before moving into Downing Street last year, assuming the cat had got lost – or worse, been run over.

So they transferred their affections to the family budgie, Gibson, named after RAF Dambusters hero Guy Gibson, and two goldfish.

It appears, however, that Freya is a better mouser than the original official mouser, Larry. David Cameron was obliged to dismiss him (he was more tolerant with Andy Coulson).

But microchipping doesn’t always prevent court cases.

Court interpreters as spies/Gerichtsdolmetscher als Spione

1. Werner Siebers, the criminal defence lawyer, reports in his blog that the public prosecutor’s department in Kassel wants to prescribe what court interpreter he uses on a first visit to a potential client in prison. He is concerned that the public prosecutors may be using an interpreter to report back to them on conversations between defendant and defence counsel.

Wenn ein Dolmetscher vereidigt ist, werde ich ganz sicher nicht zulassen, dass mir die Staatsanwaltschaft dazwischenfunkt. So verkniffen, wie die Staatsanwaltschaft die Sache angeht, werde ich das jetzt auch sehen.

Die wollen vielleicht einen Dolmetscher “einschleusen”, der dann brühwarm berichtet, was mir der Beschuldigte erzählt hat. Das fehlt mir noch.

2. Carsten Hoenig takes up the topic in Verraeter-Dolmetscher (excuse English keyboard). He comments that some interpreters may be prepared to act as the prosecution’s ears, but this is rare. But he reports on a situation he experienced. There were five defendants in a case, all speakers of a rare language, and each by law should be represented by a different interpreter. On the way to prison, the interpreter said he’d already interpreted for two of the other Ds and had been there at the first police questioning. Hoenig then did not question the D on important matters. On the way back, the interpreter reported numerous details of the private conversations with the other defendants – perhaps not dangerous in this case, but all the defense counsel decided not to use this interpreter again.

Auf dem Rückweg aus dem Besuchertrakt der Untersuchungshaftanstalt berichtete mir der Dolmetscher freimütig einige Details aus den Gesprächen der anderen Verteidiger mit ihren jeweiligen Mandanten. Es war nicht Wildes dabei; aber allein der Umstand, daß der Dolmetscher überhaupt solche Geheimnisse mit Dritten – also mit mir – teilte, war für mich – und dann auch für die Berliner Strafverteidiger – Anlaß genug, uns für die weiteren Mandanten-Gespräche nach anderen professionell arbeitenden Dolmetschern umzuschauen.

Hoenig adds an account to show that nearly all interpreters are reliable.

3. Here’s a report from Austria – in German – on a situation similar to the ALS problem in the UK: Dolmetsch-Misere in Traiskirchen (thanks to Brigitte for that).